13 Fla. L. Weekly Supp. 341a
Insurance — Personal injury protection — Exhaustion of policy limits — Where PIP benefits were used to pay both lost wages and medical expenses and insured did not request that remainder of PIP benefits be reserved for paying lost wages until shortly before PIP policy limits were exhausted, and policy contains endorsement that expressly provides that medical payment coverage is excess to PIP coverage and, aside from co-pay not paid by PIP, not available until all medical expense benefits under PIP coverage have been exhausted, insurer had no duty to retroactively reallocate medical expenses previously paid by PIP to medical payment coverage after all PIP coverage had been exhausted
DOUGLAS PELLEY, Plaintiff, vs. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Defendant. County Court, 3rd Judicial Circuit in and for Columbia County, Civil Division. Case No. 05-935-SP. January 20, 2006. Tom Coleman, Judge. Counsel: David Lewis and Steve Kalishman, Steven Kalishman, P.A., Gainesville, for Plaintiff. Carol Bishop and David M. Gagnon, Taylor, Day & Currie, P.A., Jacksonville, for Defendant.
ORDER ON MOTIONS FOR SUMMARY JUDGMENT
THIS CAUSE came before the Court for hearing on January 17, 2006, upon Plaintiff’s Motion for Summary Judgment and Defendant’s Cross Motion for Summary Judgment. Both parties were represented by counsel and Plaintiff appeared in person. The Court considered both motions and all memoranda and case law and other supplemental authority submitted by the parties and having considered the oral arguments of counsel, finds as follows.
There are no disputed factual issues in this case. The parties agree that Plaintiff was insured by Defendant, suffered injuries and lost wages in an accident, and applied for and received insurance benefits for both lost wages and medical expenses through the insurance policy. The dispute centers around Defendant’s refusal to allow Plaintiff to re-allocate some medical expenses that were initially compensated by a PIP claim to the medical benefits portion of the policy so that more PIP benefits would be available to pay lost wages. The parties agree that the PIP coverage was primary and would have to be exhausted before medical benefits began to pay. The parties further agree that the Plaintiff could have exhausted the PIP benefits for the purpose of paying medical benefits by making a request that the PIP benefits be reserved for the sole purpose of paying lost wages. Plaintiff did not make that request at first and PIP benefits were used to pay both lost wages and medical benefits. At some point just prior to the total expenditure of the PIP benefits, Plaintiff requested that the remainder of the PIP benefits be reserved for paying lost wages and Defendant granted that request. Within a few days after that request was granted, Defendant submitted claims for lost wages that exhausted the PIP benefits. Thereafter, Plaintiff sought to have Defendant go back and re-allocate some medical expenses previously compensated by PIP to medical benefits and Defendant declined to grant that request.
The parties’ arguments involved a history of the PIP statute and the case law that affects it. They also argued about the interpretation of the case law and the effects of statutory revision and contractual provisions on the interpretation of the case law. Plaintiff adopted the position that the case law makes it clear that the insurance company has a duty to assist the insured in maximizing the availability of benefits and Defendant argued that this was not the case. Defendant argued that the amendment of the statute and the express statement in one of the leading cases that contractual provisions might alter the court’s decision in the case clearly point out that the parties are in a contractual agreement, conducted at arms length, and the parties are free to agree to the terms as they choose. Defendant further pointed out that an insurance company’s ability to limit coverage allows the insurance company to sell its insurance at a lower price and makes it available to more people. The parties agreed that the policy in this case contained an Amendatory Endorsement number 6910.1 which expressly provides that Medical Payments coverage be excess to PIP coverage and, aside from the 20% co-pay not paid by PIP, not available until all medical expense benefits under no-fault coverage have been exhausted. They affirmatively deny that there was any duty on the part of Defendant to retroactively reallocate PIP coverage after all PIP coverage had been exhausted.
After a thorough review of all of the documents presented to the Court and the argument of counsel, the Court concludes that Defendant had no duty to retroactively reallocate PIP coverage after all PIP coverage had been exhausted. Accordingly, it is hereby
ORDERED AND ADJUDGED that Plaintiff’s Motion for Summary Judgment is denied and Defendant’s Motion for Summary Final Judgment is granted.
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